Guidance for navigating to the right destinations without getting lost in the cloud.

As E-Discovery becomes ever more prevalent in litigation, E-Discovery software vendors are offering a wide range of features and pricing models. Significant disparities in pricing, services and systems can make it difficult to make comparisons. However, they also present an opportunity to be more efficient in your E-Discovery practice by allowing for you to find the best fitting solution for the matter you are handling. When it comes to fit, here are some factors to consider:

Appropriate collection methods. One of the first questions that you need to ask is “What is the right method to collect this information?” The answer will depend heavily on the issues and the stakes. At the extremes, a full scale forensic collection is generally overkill for a routine slip and fall case with nominal damages. At the other end of the spectrum, just having the client send you some files via email is probably inappropriate for a trade secrets case. Cloud-based office solutions like Office 365, G-Suite, Dropbox, and the like have become very common for a variety of businesses. Do you need a vendor that can collect those cloud files remotely, or is there an internal resource with administrator rights that can manage the collection at the client level? Collection of text messages have dominated the news cycle lately, but discovery into text messages is not limited to national politics. More and more requests for production in comparatively routine matters are seeking this somewhat challenging form of ESI. A prospective vendor’s ability to do forensic, cloud, or text collections can be an important factor in cases that require those collection methods for defensibility.

Quantity and Quality of ESI. Is it a 5GB case, or a 5TB case? As E-Discovery becomes more common even in comparatively lower-stakes litigation, vendors are adapting their software and pricing models to accommodate. Some questions to consider here are:

What review approach is appropriate? When faced with a scenario in which large quantities of data must be reviewed in short period of time, there are two approaches: bringing in more review attorneys, or more reliance on Technology Assisted Review (TAR). If using the former, does the prospective vendor charge for each user? If the latter, does the vendor’s software have the features you may need, such as predictive coding, for your particular matter?

Who will manage the process? The traditional E-Discovery model relies on a Project Manager to coordinate ingesting the data into the system, setting up review workflows, mapping metadata fields, batching assignments, creating productions, etc. However, an increasing number of vendors are offering systems that are almost entirely “self-serve.” The processes that have typically been done by specially trained personnel have become increasingly automated and simplified, such that a lawyer can manage these tasks without outside assistance. The self-serve model tends to be less expensive with less wasted time and faster turnaround, but is generally less capable of handling non-standard data types, complex workflows, or large review teams that require widely varying levels of access to the data.

Timing. The timing anticipated for your case can be an important consideration when it comes to E-Discovery vendor pricing models. Some vendors offer detailed a la carte pricing, the front loads cost with a per GB rate for ingestion and processing, and then a lower monthly per GB rate for hosting. The other model that is becoming more common is “All-in” pricing, where the per GB rate includes processing and hosting, but is usually higher than the hosting cost of the a la carte model. For example, Vendor A might charge $75/GB for processing, and then $20/GB/Month for hosting. Vendor B charges a simple flat rate of $40/GB/Month. Choosing the right pricing model for the time period needed to properly handle the data can save your client significant sums of money. All other things being equal, “all-in” pricing is better suited to cases where you’ll only need to use the data and software for a short period. On the other hand, a case that is likely to be drawn out for whatever reason favors an a la carte pricing model.

Comments or questions regarding the content of Wooden’s GPS for E-Discovery are always welcome and can be emailed to WoodenDataStrategy@WoodenLawyers.com. Thank you for your interest and we looking forward to learning your opinions and providing more information on our content.